Motions for Security of Costs

Appeal    Security for Costs      A respondent to an appeal should consider whether or not to bring a motion requiring the appellant to post security of costs, essentially a payment made by the appellant into court underwriting the costs award against the appellant which might follow if the appeal is ultimately unsuccessful.An order for security for costs is appropriate when it is unfair to expose the respondent to the risk that the appellant will not satisfy the costs of the appeal if the appeal is unsuccessful.  Security of costs on appeal is governed by Rule 61.06(1)(a) and (c) of the Rules of Civil Procedure.For such an order to be granted under 61.06(1)(a), the motion judge musthave good reason to believe the appeal has no merit and is therefore frivolous and vexatious, andhave good reason to believe the appellant has insufficient assets in Ontario to cover the costs of the appeal.Of course, on a practical level it is impossible for a motions judge to assess adequately the merits of an appeal, considering the transcripts and volume of material which will be placed before the appellate court. In light of this, a judge hearing a motion for security for costs may reach the tentative conclusion that an appeal appears to be so devoid of merit as to give "good reason to believe that the appeal is frivolous and vexatious" without being satisfied that the appeal is actually totally devoid of merit.Where the appeal has a low prospect of success, more is required to establish the appeal as frivolous and vexatious."The words "frivolous and vexatious" imply that the appeal must not only have a minimal chance of success; there must be good reason, on the facts surrounding the litigation, or from the conduct of